Court Keeps a Lid on FBI’s Racial Profiling Records

PHILADELPHIA (CN) – Government agencies properly withheld documents that would shed light on how investigators use racial profiling in the field, the 3rd Circuit ruled. The 21-page decision opens with a description of how the FBI revised its Domestic Investigations and Operations Guide after the terrorist attacks of Sept. 11, 2001. Citing the final report of the 9/11 Commission, the court said that the revised guide “authorizes FBI agents to engage in limited racial and ethnic profiling” and “allows FBI agents to indentify and map ‘locations of concentrated ethnic communities.” Concerned that this unfettered access would lead to racial profiling, the American Civil Liberties Union filed Freedom of Information Act requests for records and documents pertaining to the “FBI’s use of ethnic and racial data.” Out of the 782 pages that the FBI drummed up, 186 pages were deemed duplicates and 284 pages were exempt from disclosure. In 2011, the group filed a federal complaint in Newark, N.J., to access those exempt documents. Citing Exemptions 1, 7A, 7C, 7D and 7E of the Freedom of Information Act, the FBI moved for summary judgment. In resolving whether the FBI properly relied on FOIA’s exclusion provision codified at Section 552(c) of Title 5, U.S. District Judge Esther Salas conducted an in camera review of an FBI declaration that the ACLU requested. The ACLU complained, however, that she should have used a “Glomar-like” procedure to address this issue. Refusal by a government agency to confirm or deny the existence of the requested records is known as a Glomar response. It takes its name from the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean. Rooted in the D.C. Circuit’s 1976 case Phillippi v. CIA, the “Glomar-like” procedure makes in camera review a last resort. The ACLU said that the government should have been required to publicly file an admission that the FOIA request was not processed because it was deemed to seek records that would be excludable under Section 552(c). U.S. District Judge Esther Salas refused to conduct such a review and granted the FBI summary judgment, finding that the agency had satisfied its burden of demonstrating that it could neither segregate nor disclose any of the withheld information. She did so without confirming or denying the FBI’s reliance on FOIA’s exclusion provision. “If an exclusion was invoked, it was and remains amply justified,” she wrote. A three-judge panel of the 3rd Circuit affirmed Wednesday, finding “that ample evidence supported the District Court’s conclusion that the FBI satisfied its burden under Exemption 7A.” Exemption 7A authorizes the withholding of records for law-enforcement purpose when either the compilation or release of information would interfere with proceedings. “It is hard to imagine how the FBI could provide a more detailed justification for withholding information under this exemption without compromising the very information it sought to protect,” Judge D. Brooks Smith wrote for the panel. The court also rejected the ACLU’s claim that release of the limited public information it seeks would not tip off targets or impede in investigations because the information is public. “This argument misses the obvious point that while the demographic data itself may be public, its use by the FBI is certainly not,” Smith wrote. FBI section chief David Hardy undermined that argument in several declarations he made to the court, according to the ruling. “The Hardy Declarations revel what should be obvious to anyone: that the harm from disclosure lies in revealing, indirectly, the FBI’s targeting preferences and investigative techniques – not in revealing demographic that is already available to the public,” Smith added. There is also no basis to grant the ACLU’s “novel proposal” of remanding the case for employment of the Glomar-like procedure, according to the ruling. On this point, the court found that an “in camera procedure provides for more meaningful review than does the ‘Glomar-like’ method of adjudicating ‘[o]pen ended hypothetical questions,’ which ‘are not well suited to the litigation process.'”